BNUMBER:  B-277396 
DATE:  October 9, 1997
TITLE: Pickering Firm Incorporated, B-277396, October 9, 1997
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Matter of:Pickering Firm Incorporated

File:     B-277396

Date:October 9, 1997

Joe B. Emison, Jr., for the protester.
Robert C. Miller, Esq., and C. Grady Moore, Jr., Esq., U.S. Army Corps 
of Engineers, for the agency.
C. Douglas McArthur, Esq., and Christine S. Melody, Esq., Office of 
the General Counsel, GAO, participated in the preparation of the 
decision.

DIGEST

1.  Where Commerce Business Daily (CBD) announcement stated that 
agency would consider qualifications and experience of 
architect-engineer (A-E) firms in nine disciplines and evaluators 
considered the protester superior in its qualifications and experience 
in one of them--museum/exhibit design--record fails to show that 
evaluation and selection decision were inconsistent with CBD 
announcement where the announcement identified none of the nine 
disciplines as more important than the others; agency found the 
awardee's qualifications and experience superior for other 
disciplines; and source selection board could reasonably conclude that 
there was no significant difference in the qualifications and 
experience of the two firms.

2.  Where CBD announcement stated that evaluation of specialized 
experience and technical competence would include knowledge of local 
and regional codes and regulations, source selection board's 
conclusion that awardee's proposal presented an advantage in its 
superior knowledge of local and regional codes and regulations was 
consistent with the announced factors; protester's objection to the 
consideration of such a factor constitutes an untimely allegation of a 
solicitation defect.

3.  General Accounting Office will not reevaluate offeror's 
capabilities or make its own determination of the relative merit of 
proposals, and where evaluation of management structure appears 
reasonable and consistent with the announced criteria, the protester's 
disagreement with the evaluation provides no basis for sustaining a 
protest.

4.  Protest challenging conduct of interviews of A-E firms because not 
all members of the source selection board attended interviews is 
denied where agency's regulation does not require all members to be 
present, there is no evidence that their absence resulted in unfair 
treatment, and the record otherwise shows that the evaluation was 
reasonable.

DECISION

Pickering Firm Incorporated protests the proposed award of a contract 
to Johnson and Bailey Architects, P.C. under request for proposals 
(RFP) No. DACW62-97-R-0006, issued by the U.S. Army Corps of 
Engineers, Nashville District, for design services for an 
environmental education center/children's museum, which the agency 
contemplates constructing sometime next year.  Pickering contends that 
the agency unreasonably and improperly evaluated proposals; 
specifically, Pickering argues that the evaluation was performed in 
such a way as to favor local, Nashville-area firms.

We deny the protest.

On December 6, 1996, the Commerce Business Daily (CBD) published the 
agency's request for interested firms to submit a statement of their 
qualifications to be considered for the award of a contract to prepare 
design documents for construction of an environmental education 
center/children's museum in Murfreesboro, Tennessee.  The project 
would consist of two phases:   phase I, preparation of the site in 
advance of construction (including environmental remediation, asbestos 
abatement plans, and demolition plans for two existing municipal 
buildings); and phase II, preparation of final plans and 
specifications for construction of the new building, including site 
development, roads, parking, utility relocation, and wetland/spring 
interpretation.

The CBD notice advised firms of the need to demonstrate expertise in 
the disciplines of architecture, environmental, civil, structural, 
electrical, mechanical, landscape architecture, interior design, and 
museum/exhibit design.  It listed the selection criteria, in 
descending order of importance, as follows:

     a.  Professional qualifications of the key project management and 
     technical personnel to be assigned to the contract.  Evaluation 
     factors will include the education, training, experience, and 
     registration of these personnel.

     b.  Specialized experience and technical competence of the prime 
     firm and any subcontractors in the type of work required.  
     Evaluation factors will include knowledge of local and regional 
     codes and regulations, the effectiveness of the proposed 
     management structure and the prior working relationship between a 
     prime firm and any subcontractor.  A single point of contact 
     between the [architect-engineer (A-E)] and the Government project 
     manager must be clearly identified.
 
     c.  Capacity of the firm to accomplish the work.

     d.  Past performance and experience on [Department of Defense 
     (DOD)] and other contracts with respect to cost control, quality 
     of work, and compliance with schedules.

     e.  Geographical proximity of the office responsible for contract 
     negotiations and production of the work in relationship to the 
     Nashville District Office and the city of Murfreesboro, TN.

     f.  Volume of DOD contracts within the last twelve months with 
     the object of effecting an equitable distribution of contracts 
     among qualified A-E firms including small and small disadvantaged 
     business firms.

Criteria a-d were described as "primary," with criteria e and f to be 
used only as "tie-breakers" among technically equal firms. 

Fifteen firms submitted the required standard forms (SF) 254 (a 
general questionnaire for A-E and related services) and 255 (relating 
to the specific services being solicited) by January 3, 1997.  The 
agency established a source selection board (SSB), which evaluated the 
firms' qualifications.  In accordance with Federal Acquisition 
Regulation (FAR) Subpart 36.6, the agency selected three firms, 
including the protester and the awardee, as most highly qualified to 
perform the services.  See FAR  sec.  36.602-3(d).  The SSB invited the 
three firms for interviews on February 4; one member of the SSB served 
as chairman at all of the interviews and the remaining members were 
represented by subordinates.  After the interviews and a review of the 
firms' qualifications, the agency ranked the three offerors, with 
Johnson ranked first and Pickering ranked second.  By letter dated 
March 12, the agency advised the protester that it was initiating 
negotiations with the top-ranked firm.  Pickering filed this protest 
with our Office after initially filing a protest with the agency, 
which the agency denied by letter dated June 19.

Pickering principally argues that the agency improperly favored local, 
Nashville-based firms in the evaluation and selection process.  
Pickering asserts, and the agency does not dispute, that its 
qualifications and experience were superior to Johnson's in the 
discipline of museum/exhibit design.  It is Pickering's contention 
that, to favor a local, Nashville-area firm, the agency improperly 
discounted the protester's superiority in that discipline and 
unreasonably concluded that there were no significant differences 
between the firms under the four primary selection criteria.  By 
improperly ignoring Pickering's superiority, the protester argues, the 
SSB created an artificial "tie" between the proposals, which allowed 
the agency to favor a local firm by basing its selection decision on 
geographical proximity, one of the two tie-breaking evaluation 
criteria.

In reviewing an agency's selection of a contractor for A-E services, 
our function is not to make our own determination of the relative 
merits of the submissions, or to substitute our judgment for that of 
the procuring agency by conducting an independent examination.  
Geographic Resource Solutions, B-260402, June 19, 1995, 95-1 CPD  para.  278 
at 5.  Rather, our review is limited to examining whether the agency's 
selection was reasonable and in accordance with the published 
criteria.  ConCeCo Eng'g, Inc., B-250666, Feb. 3, 1993, 93-1 CPD  para.  98 
at 3.  The protester must demonstrate that the evaluation was 
unreasonable, a burden that is not met by mere expressions of 
disagreement with that evaluation.  CH2M Hill, Ltd., B-259511 et al., 
Apr. 6, 1995, 95-1 CPD  para.  203 at 4.  The record here provides no basis 
to conclude that the agency's selection of Johnson was improper or 
unreasonable.

The SSB here prepared a memorandum, dated February 27, for the 
selection official summarizing its findings and recommending Johnson 
for award.  That memorandum reflects the SSB's opinion that, despite 
the excellence of Pickering's museum design subconsultant, there was 
no meaningful difference between the proposals of Pickering and 
Johnson under the four primary evaluation criteria.  The SSB 
considered Johnson's knowledge of local and regional codes and 
regulations superior; it considered Pickering's proposed management 
structure, which had most of the required disciplines in-house, 
superior.  Under the "tie-breaker" criteria, the SSB noted, Johnson 
was superior both in geographical proximity and its lower volume of 
DOD contracts.

Subsequent to Pickering's protest to the agency, members of the SSB 
prepared additional documentation to elaborate on their reasoning.[1]  
That documentation indicates that, while the SSB recognized the 
particularly strong qualifications of Pickering's museum design 
subconsultant, it considered Johnson's qualifications and experience 
somewhat better for the disciplines of architecture, landscape 
architecture, and environmental.  The SSB members noted that both 
firms proposed to employ registered professionals in all of the 
technical disciplines, with the experience of both firms in 
museum/exhibit design attributable to their subconsultants, rather 
than to in-house capabilities.  Moreover, while recognizing the 
superiority of Pickering's subconsultant, the SSB members regarded 
Johnson's subconsultant for museum/exhibit design very highly. 

The supplemental documents also support and elaborate on the SSB's 
conclusion in the February 27 memorandum that museum/exhibit design 
expertise should not in itself be the basis for selection.  There are, 
the agency explains, two ways to design a museum:  to design exhibits 
and to design the building as a "shell" to house those exhibits, or to 
design a more general-purpose building to accommodate exhibits that 
will be designed later.  Here, the record shows that funding for the 
entire project was not assured and that the agency anticipated the 
latter approach, where Pickering's ability to design a building around 
the exhibits would be of far less importance than the disciplines 
needed in the initial, site-preparation phase of the project.

In essence, the agency determined that, given the nature of the 
project here, Pickering's qualifications and experience with 
museum/exhibit design were not, by themselves, a basis for selecting 
Pickering.  We see no basis to conclude that this determination was 
unreasonable.  The CBD announcement identified nine disciplines and 
required a demonstration of competence for all of them.  These 
disciplines were not designated in any order of importance or 
identified as having any relative standing.  There was, therefore, no 
basis for Pickering's assumption that superiority in museum/exhibit 
design would be determinative.  Further, the CBD announcement clearly 
indicated that, while design of the museum building was to be part of 
phase II, other work unrelated to museum design--site preparation and 
development involving such efforts as environmental remediation, road 
development, utility relocation, and wetland/spring 
interpretation--was a critical part of both phases of the project.  
The agency therefore reasonably could conclude that Pickering's 
superiority in museum/exhibit design did not constitute a significant 
advantage for purpose of this project.[2]

As noted above, under the second evaluation criterion (specialized 
experience and technical competence), the SSB found no significant 
difference between Johnson and Pickering.  Johnson demonstrated 
superior knowledge of local and regional codes and regulations, but 
the evaluators preferred Pickering's management structure, with its 
majority of disciplines in-house, overall.  The supplemental 
documentation indicates that the SSB also preferred Johnson's approach 
of using its principal as lead architect and point of contact, while 
finding Pickering's proposal for a point of contact/project manager 
apart from the lead architect, with an additional position of "project 
director," somewhat confusing.

Pickering asserts that consideration of the firms' knowledge of local 
and regional codes and regulations represents an improper bias toward 
local firms.  This objection is untimely, since the CBD announcement 
stated that the agency would consider such knowledge in its 
evaluation.  See 4 C.F.R.  sec.  21.2(a)(1) (1997) (protest alleging a 
solicitation impropriety must be filed prior to the time set for 
receipt of initial proposals); B & K Enters., B-276066, May 7, 1997, 
97-1 CPD  para.  166 at 3 (objection to the announced evaluation factors 
must be raised prior to the submission of proposals).  In any event, 
as the agency points out, unlike considerations of geographical 
proximity, consideration of such knowledge does not of itself favor 
local firms, since the relevant codes and regulations are a matter of 
public record and available to firms outside the Nashville area.

With respect to the agency's concern regarding its proposal for a 
point of contact/project manager apart from the lead architect, with 
an additional position of project director, Pickering contends that 
its organizational structure was clearly defined in section 7 of its 
SF 255, as well as in section 10 and in an organizational chart 
provided with the SF 255.  We have reviewed this material and find 
nothing in section 7 or Pickering's organizational chart to clarify 
the roles of its team members.  Section 7 provides job titles and work 
history, but does not address Pickering's plans for the instant 
project; nor does the organizational chart provide more than the 
theoretical lines of authority for the protester's management 
structure.  Further, the record supports the agency's perception that 
the role of the "project director" is somewhat confusing, since 
section 10, while it provides some relevant information, explains none 
of the duties and authority of the position, listed at the end of the 
SF 255, after a long section describing the duties of the other team 
members.  In any event, there is little evidence that the conflict in 
roles was a significant factor in the evaluation, given the SSB's 
overall favorable rating of Pickering's management structure.

Other concerns mentioned at the debriefing, and challenged by 
Pickering here, had no significant role in the evaluation and 
selection.  These concerns involve the experience of the protester's 
project director in construction and the management experience of its 
point of contact/project manager, not mentioned in the evaluation 
documents.  The SSB recorder, who conducted the debriefing, denies 
that, by noting the project director's extensive construction 
experience, he intended to imply that the project director had no 
design experience.  Similarly, he states that he did not intend to 
indicate any concern over the management ability of the project 
manager/point of contact by stating that the project manager's 
extensive experience in managing DOD contracts was less significant 
for the instant, civil works effort, than it would have been for other 
projects.  In essence, the recorder explains, he was not questioning 
the individuals' qualifications as much as suggesting that the 
protester might have matched those skills better with other projects.  
Neither the debriefing nor any evidence in the record suggests that 
the agency failed to conduct an adequate examination of the 
information submitted by Pickering in connection with the project.

The agency also denies that it gave more weight to past performance of 
contracts for the Nashville District, as Pickering contends it was 
told at the debriefing.  The SSB did note that Pickering had the "most 
dated" experience with the District of any of the three finalists.  
The agency has presented its records, indicating that, despite 
Pickering's excellent performance on older contracts, its recent 
ratings have generally been average, with one "conditional" 
recommendation based on problems with the protester's cost estimating 
consultant.  In this regard, the agency notes that the CBD 
specifically noted cost control as a consideration in the past 
performance evaluation.  Pickering's receipt of a more recent, 
favorable rating in an Air Force family housing contract would have 
made no difference, the agency contends, in its determination that 
there was no significant advantage to Pickering's record of past 
performance.  Although Johnson had no ratings as a prime contractor, 
the agency states that it had performed well as a subconsultant on 
prior work at Murfree Springs.  On this record we are unable to find 
unreasonable the agency's conclusion that there was no meaningful 
difference between the two firms under the past performance factor.

In sum, Pickering overall presents nothing from which our Office could 
find the agency's judgment, that the two firms were technically equal 
under the four major selection factors, was either unreasonable or 
inconsistent with the CBD announcement.  This being so, the agency's 
consideration of the less important criteria--geographical proximity 
and contract volume, for which Johnson had a decided advantage--was 
reasonable and consistent with the announcement. 

As an additional ground of protest, Pickering objects to the conduct 
of the interviews because they were not attended by all SSB members.  
As a preliminary matter, the agency notes that its regulation 
715-1-16, to which the protester refers, requires that only one SSB 
member be present at interviews in "routine" procurements, such as the 
instant case.  Further, given our conclusion that the evaluation was 
reasonable and is supported by the record, and the lack of any 
evidence that the SSB members' absence resulted in unfair treatment, 
we see no basis to object to the agency's selection decision on this 
ground.

The protest is denied.

Comptroller General
of the United States

1. As the agency itself recognizes, the contemporaneous evaluation 
record is sparse, consisting of the February 27 memorandum addressing 
the relative strengths and weaknesses of the offerors.  After the 
agency-level protest was filed, the SSB prepared individual worksheets 
and consensus ratings discussing in more detail the specific findings 
that led to the selection decision.  For example, while the 
contemporaneous memorandum contains no expression of concern over 
Pickering's management structure, as discussed below, the agency did 
prefer Johnson's approach, where the firm's principal would be the 
lead architect as well as the single point of contact, versus 
Pickering's approach, which provided for a lead architect as well as a 
project manager/point of contract, apparently answerable to a "project 
director," whose role was unclear.  Since we base our decisions on the

entire record, see Southwest Marine, Inc.; American Sys. Eng'g Corp., 
B-265865.3, B-265865.4, Jan. 23, 1996, 96-1 CPD  para.  56 at 10, recon. 
denied, B-265865.5, B-265865.6, June 3, 1996, 96-1 CPD  para.  261, we will 
consider all this information in reviewing the reasonableness of the 
agency's decision.  While we give greater weight to contemporaneous 
evidence, DynCorp, 71 Comp. Gen. 129, 134 n.12 (1991), 91-2 CPD  para.  575 
at 7 n.13, here we view the agency's post-protest documentation as 
simply filling in previously unrecorded details, rather creating a 
new, post hoc rationale.

2. To the extent that Pickering argues, generally, that its experience 
and qualifications were as great as Johnson's for the other 
disciplines, the protester provides nothing more than its mere 
disagreement with the evaluation results, and thus provides no basis 
for sustaining the protest.  CH2M Hill, Ltd., supra.